Himalaya clause

A Himalaya clause extends the carrier’s contractual defences and liability limits to servants, agents and independent contractors, most importantly stevedores, terminal operators and sub-contracted carriers, who would otherwise be sued directly in tort without the benefit of the contract.

The clause takes its name from the litigation over the passenger ship Himalaya, which exposed the gap the clause exists to close: a claimant who cannot recover against the contracting carrier beyond the limit may instead sue the party who physically did the work. Without an effective Himalaya clause the carriage regime’s limits can be circumvented, and with one the whole performing chain takes the benefit of the same defences and the same time bar.

The full article will cover the drafting that makes the clause work, the doctrinal difficulty of conferring a benefit on a non-party and how different jurisdictions solve it, the interaction with the Hague-Visby Rules, and the position of sub-contractors and terminals under a bill of lading and under a charter party.